Submission Date:
Question:
We are a large (100-employee) school district public library. We are currently encouraging and educating employees on getting vaccinated, but not (yet) *requiring* vaccinations. We are providing employees with up to 4 hours of paid time off to obtain the vaccine voluntarily--if their vaccine appointment occurs during hours/days when they would otherwise be scheduled and working for us--and requiring proof of vaccination if this paid time off is used.
My question has to do with requiring or requesting proof of vaccination for employees who get vaccinated during their "off hours" and opt not to use this specific paid time off type. Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?
If we can obtain proof from everyone, I assume that this should be handled by HR (me) in the typical manner of any confidential medical information. But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers? They might wish to know details in order to schedule staff accordingly. But at the same time, I would be leery of divulging such information, out of concerns for maintaining employee confidentiality, possible discrimination by unwitting supervisors, etc. I might be more inclined to/comfortable with reporting general numbers--i.e., of 100 employees, 29 have been vaccinated to date--than to share employee-specific details, but am not sure if that would be helpful, or really what information *is* helpful for employers to track and report on internally where vaccination status of staff is concerned.
This is an invaluable service. Thank you for your consideration of my questions and for any guidance you can give!
Answer:
Over and over again, I am floored by the care, tenacity, and creativity of the libraries determined to provide services in a time of pandemic. New York's libraries just don't give up. This question shows the mechanics of that fighting spirit.
So much of what we do in this pandemic comes back to why we are doing things in this pandemic. For many libraries, the "why" of offering services is making sure their communities have lifelines to professionally curated information.
For this question, the "why" of asking for proof of vaccination is right there in the submission's core:
... so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
Let's take that "direct threat" part first.
Back on March 19, 2020, we addressed a question about employer (library) liability due to Coronavirus exposure. Although much has changed since that time (we have vaccines), the basic recipe for liability has not changed: liability happens when a person/entity owes a duty of care to a person, does not perform that duty, and the failure results in damage.
Because if this recipe, it is essential for libraries to always know what "duty of care" they owe their workers, and their community.
In a pandemic, evolving data and resulting best practices can change the "duty of care" rapidly (No masks? One mask? Two?).
While many resources are aggregating and pushing out up-to-the-minute guidance on "best practices," there are only three places libraries in the State of New York should be drawing their duty of care practices directly from: the New York State Department of Health ("NYSDOH"), the Centers for Disease Control ("CDC"), and the Occupational Hazard and Safety Administration ("OSHA").
Right now, as of this writing, OSHA's 1/29/2021 workplace guidance[1] for mitigating the impact of COVID-19 lists 16 "elements" of an effective COVID protection program. Here is what OSHA recommends about using awareness of vaccination status of employees:
Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
So right now, the "duty of care" set out by OSHA expressly excludes relying on vaccination status to reduce the spread of the virus. Rather, it focuses on providing and insisting on appropriate PPE.
That said, in the same guidance, OSHA continues to recommend allowing employees who self-identify as medically vulnerable to swap tasks to limit risk:
Offer vulnerable workers duties that minimize their contact with customers and other workers (e.g., restocking shelves rather than working as a cashier), if the worker agrees to this.
This means if a person, relying on their vaccination status, decides to not self-identify as medically vulnerable, the employer is not advised to offer them contact-minimizing duties.
There are other steps on the current OSHA list that the member is already doing. By enabling the use of PTO for vaccination, they are following the guidance in element "14":
Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees. Provide information and training on the benefits and safety of vaccinations.
This guidance, I imagine, will evolve. That evolution should be reflected in revised Safety Plans.
And with that said, let's answer the member's specific questions:
Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
Based on the current OSHA guidance, along with guidance from the EEOC, the answer to this is "yes," and then "no." Yes, an employer can ask for proof of vaccination (whether acquired on PTO or off-hours).[2] No, right now, it should not be used for assignment of duties[3] or with the idea of reducing possible liability.
Here is the member's follow-up question:
If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?
Based on the current OSHA guidance, along with guidance from the EEOC, right now does not seem like the time to rely on vaccination status and data to make determinations about workplace risk management and safety. So while requiring a notification of vaccination status may be permissible, it does not appear desirable if its purpose is to mitigate concerns about liability.
If, however, the motivation is to verify that the library is effectively encouraging the most employees possible to get vaccinated—simply for the employees' own personal health and safety—then yes, tracking those metrics (and any non-disability factors barring vaccinations) might not only be permissible, but desirable. In that case, the question is: does the information need to be tied directly to a particular employee, or is it just as meaningful if anonymous?
Which brings us to the member's last question:
But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers?...I would be leery of divulging such information, out of concerns for maintaining employee confidentiality...
This HR manager knows their stuff!
First, yes: no matter what, never create a risk of trampling on employees' privacy.
Second: Right now, it appears that sharing such information is unnecessary.
In a December 18th, 2020 "Ask the Lawyer," I stated that a vaccine requirement should only be implemented if it is part of a well-thought-out, board-approved Safety Plan. Right now, it appears that no Safety Plan should rely on a vaccine requirement to reduce transmission of the virus. With that in mind, right now, it appears the safest course of action –both COVID-wise, and legally—is to encourage vaccination, but not require it, and if a library tracks it, only do it for purposes of encouraging more employee vaccinations (or finding out you've hit close to 100%).
Of course, here we are on February 26, 2021. If you are reading this in March, or April, or that sunny, warmer time in the future, May and beyond[4], this answer might no longer apply.
Keep checking with NYSDOH, with the CDC, and of course, with OSHA. At some point, requiring vaccination—or allocating duties by vaccination status—could become something expected of an employer. If that happens, a library's "duty of care" could change, altering the threshold for liability, and the answer to these questions could shift—some subtly, some not-so-subtly.
But we have had a lot of twists and turns in the Pandemic. That "shift" may or may not happen.[5] As I often say at my office, "the only plan we can make is that the plan will change." And how do you plan for that? By doing what this member has done: keeping employees' well-being and safety at the forefront, and adapting every time the data and guidance change.
If your library does that, you'll be as safe as you can be. And mitigate your liability.
Thank you for a thoughtful question.
[1] Posted as of February 26, 2021 at https://www.osha.gov/coronavirus/safework.
[2] This answer is found on the EEOC site at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws as of 2/26/2021. "K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20) No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. ... If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA."
[3] Remember, if the employee uses vaccination status to self-identify as vulnerable, such information can be considered by the library reactively (and confidentially). For more on that, see the "Ask the Lawyer" from January 19, 2021.
[4] Garden time! Can you tell I can't wait to get into the dirt? It always feels so distant, this time of year.
[5] As OSHA says, more research is required.
Tag:
COVID-19, COVID-19 Vaccine, Emergency Response, Employee Rights, Policy, Public Health, Public Libraries
